Unfortunately, Obama may add Sotomayor to the Supreme Court. Sotomayor supports very high damages when it comes to personal information activities, such as backing up your DVDs (because you don’t want your disks scratched) or ripping your CDs to your computer (because they cannot be played in some modern DVD players).

Ironically, intellectual property lobbyists are themselves guilty of plagiarism. However, unlike you, they can afford a team of lawyers, and so are effectively above the law. In a system where major policy decisions are chosen by lawyers, and judges like Sotomayer side with monied interests, there is little room for either justice or competition.

Helpful insights, however, need not become rigid and mandatory formulas; and when it is so applied, the TSM test is incompatible with our precedents. The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

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The question is not whether the combination was obvious to the patentee but whether the combination was obvious to a person with ordinary skill in the art. Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not thesubject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

The Court hasn’t signifiacantly ruled on patent law for a while, so the country’s patent laws have essentialyl been written by lower courts. These courts have brought upon one disaster after another, making patents easy to get and turning them into cash cows for rentier, vampire companies. Companies that actually innovate and make new products are sued into the ground (or merely for a few hundred million) by lawyers who dredge up this or that new patent.

This doesn’t merely hurt honest businesses, of course. It also drives up the cost of computing, throwing friction into the economy and hurting the poor worst. For instance, take the great open source projects Linux and OpenOffice. Linux aims to provide a free alternative to Windows and other operating systems, while OpenOffice is a completely-no-cost riff on Microsoft Office. The harder it is to challenge patents, the easier it is for anyone to threaten to shut down those operations unless they are somehow paid money. This adds to the cost of doing business of every company that would use Linux and OpenOffice, and of course most seriously harms those least able to pay high prices charged by the rentiers and their friends.

kanad wrote to mention a ZDNet article covering the introduction of the Patent Reform Act of 2005 to the U.S. House of Representatives. From the article: “Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. ‘Opposition requests’ can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out. The bill is supported by the USPTO and Microsoft who have been recently asking for patent reforms .” More details of the bill are available at the Congressman’s website.”

I’ve supported patent reform before. The current system not only retards the software industry. It hurtsAmerica in the Global War on Terror.